Debate: Election of judges

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Should judges be elected?

Background and context

The election of judges has been a highly contentious issue for years. While most countries do not have judicial elections, prominent exceptions exist, including the United States, Japan, and Switzerland. In the United States, while Supreme Court justices are appointed without elections, many states within the union elect their high court judges.

At all levels of government, the questions surrounding this debate remain fairly constant:

Is the appointment of judges sufficiently democratic and are elected judges sufficiently accountable, or are elections necessary for this purpose? Is the appointment and confirmation of judges by elected officials sufficiently democratic? Are elected judges more susceptible to catering to campaign funders and special interests, and are they at risk of conflicts of interests in their rulings? Can these potential pitfalls be regulated - while maintaining elections - through, for example, the mandatory recusal of judges in cases where conflicts of interests may arise? Or, is this too much of a regulatory hassle? Does the potential of conflicts of interests with elected judges jeopardize the legitimacy of judicial rulings? Should judges generally be insulated from the election and campaign processes, for purposes of keeping them focused on the law and court cases? Is such insulation from politics important in maintaining an independent judiciary that is more capable of checking the other branches of government? Are voters capable of electing qualified and possibly superior judges, or are they prone to elect less qualified ones? Overall, how does the importance of having high officials directly accountable to the people weigh against the potential costs surrounding the election judges? Overall, is the election of judges a good idea?

Elected judges are more in tune with public opinion The system of training through law schools and vocational work is elitist and prolonged, and leaves judges’ opinions at risk of being, or appearing, out of date or out of touch. Law schools have a reputation for being more liberal than the majority. Judges are often seen as lacking knowledge of recent social trends. Elections can help reverse these trends by forcing judges to understand and respect public opinion so they can advance a form of law that is seen as "just" to all citizens, not just to their own conscience.

Judicial elections are far more transparent than appointments. This is true in many ways. First, the actual competitive election and campaigning process reveals the nature of judicial candidates, as compared to the judicial appointment process where there is no effort required to make citizens aware of an judges qualifications. And, due to the higher profile of elections, the judiciary takes on a much more prominent public profile, receiving greater scrutiny from the public and journalists, all which increase transparency and accountability.

No

Elected judges wrongly interpret public opinion over the law Legal decisions require a strict interpretation of law. It should not be driven by popular opinion. Yet, this is precisely what judicial elections call for. This diverges from basic judicial principles of applying the law objectively and neutrally.

Election of judges bows to tyranny of the majority. Without elections, the judiciary is a branch of government that is isolated away from elections, and a check is placed on the potential for a tyranny of the majority, which can occur when a majority of the population retains dominance in elections.

Judges can be made accountable without elections. Judges are held to account by their ability to publish dissents, and by those who have the time and special knowledge needed to assess their capability. In some countries, such as the UK, judges can theoretically be dismissed by a vote of the legislature.

Many officials are appointed; why not judges as well? Public life is already run by career civil servants and unelected officials. There is no reason why the judiciary should be any different.

Judges are appointed/confirmed by elected officials, democratically. Judges are appointed and confirmed by elected officials, which means that they are democratically appointed, albeit indirectly, via the people's elected represantives. This is common and appropriate in a republic, that some individuals are not directly elected, but whom are democratically accountable one-step-removed. Appointed judges, therefore, are not removed from the election process and the people's judgement; they are at arms length to the democratic, electoral process.

Voters: Can voters and elections do a good job at electing judges?

Pro

Voters will ensure elected judges uphold the rule of law Voters have at heart upholding the rule of law, particularly because they are interested in maintaining their individual rights. Elections will not take judges away from the rule of law. Instead, it will prevent judges from applying radical individual preferences, and help keep judges in-line with the rule of law.

Con

Voters don't have enough info to pick the best judges Voters are overwhelmed with so much information, and so many candidates, they usually know little to nothing about candidates for judges. This means that the resulting choice has little to do with the merit of the candidate. Instead, it is simply a crapshoot shot in the dark from voters that just don't know enough to make a good choice.

Judges cannot voice their opinions, so how can voters decide? This is similar to the above argument, but it emphasizes that the problem of a lack of information for voters cannot be solved, as judges are supposed to remain silent on their politics, so that they can neutrally and objectively judge individual cases on their own merits.

Correlation b/w interests of donors and judges doesn't prove corruption. Some have tried to demonstrate a correlation between the interests of donors to the election campaigns of judges and the ultimate decisions of those judges. The idea behind these studies is that such a correlation demonstrates a tendency for judges to be biased or corrupted in favor of the views of their funders. Yet, such a conclusion is hard to prove. Donors are only likely to give money to judges that demonstrate a likelihood, irrespective of the money, to make decisions according to a certain philosophy that correlates to their own interests. The direction of the causality is important to recognize. Donors are giving money to those that are likely to uphold their interests; judges are not necessarily bending their judicial philosophies and decisions to cador to the interests of donors.

Appointment of judges is more prone to corruption than elections. The appointment of judges can be done corruptly, in which a judge is appointed based solely on a close relationship, or because their is some promise of financial reward for making the appointment. And, after the election, there is a risk that a judge will pass biased judgement in favor of the one that appointed them, as a way of compensating them for the appointment. This is of at least equal concern compared to the possibility of corruption surrounding elections, and judgments later passed in favor of campaign donors. What may make elections less potentially corrupting is the fact that the process of selecting the judge (an election) is much less likely to be biased or corrupt, as compared to an appointment by one individual.

Donors influence judges' decisions; not issue of common philosophy Some argue that donors are simply giving money to judges of similar judicial philosophies. Yet, some statistics demonstrate a clear tendency of judges to actively shift their positions in favor of their campaign donors. These statistics show the causality is of judges actively bending their positions in favor of their donors' positions, not simply of donors giving money to judges of a similar judicial philosophy.

Checks and balances: Do elected judiciaries better uphold checks and balances?

Pro

Unelected judiciaries are prone to recklessly expanding their powers. Thomas Jefferson: "the germ of dissolution of our federal government is in the Constitution of the federal judiciary; an irresponsible body (for impeachment is scarcely a scarecrow), working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief over the field of jurisdiction, until all shall be usurped from the states, and the government of all be consolidated into one."[2]

Con

Appointed judiciaries are more independent to check other branches In Federalist 78, Alexander Hamilton argued for the independence of judges. He believed they should be appointed to serve "during good behavior" and insulated from the political process, as this helps them check the legislative and executive branches. The main reason for this is that it is more difficult for a judge that is affiliated with a political party and in need of campaign funds from that party, to pass rulings against their Party leaders in the Congress, Parliament, or executive branch.[3]

Quality: Do elections improve the quality of judges?

Pro

It is up to the people to decide which judges "merit" election. It is presumptuous to conclude that the electorate is ill-qualified to determine the qualifications and merit of prospective judges and make appropriate selections based on their collective judgement of merit. Should we conclude that a single governor is more qualified to make such a judgement of merit? This is a highly presumptuous proposition.

Screening can help ensure judicial candidates have sufficient merit. Some have proposed a kind of hybrid system in which judicial elections exist, but in which a pre-screening process ensures that all candidates appropriately qualified to become a judge. This maintains the ability of voters to choose based on their best judgement, but also ensures against instances in which wholly unqualified judges are elected to the bench. This, along with other possible systems, demonstrate that it is unnecessary to entirely rid the system of elections. Elections can be maintained, while various mechanisms can be worked into place that check against any of the difficulties they may produce.

Elections frequently unseat experienced, and seat inexperienced, judges. In general, elections tend to create a higher rate of turnover in the judiciary. This means that experienced judges are more quickly booted out of office and replaced by less experienced judges. This does not benefit democracy.

Judicial elections are known to produce inferior judiciariesWalter Olson. "Judicial elections: a dissenting view". Point of Law. July 17, 2008: "Federal judges, who of course are exclusively selected by appointment rather than election, are widely seen as upholding a general standard of quality well above that of their state brethren. Business defendants in particular overwhelmingly seek to have their cases heard in federal court rather than state. Again, business litigants widely regard the judicial process of most other advanced democracies -- in Western Europe, Japan, Canada -- as more predictable and rational than that of state courts in the U.S. And again, in those other advanced democracies, elected judgeships are virtually unknown, being widely seen as part and parcel of the distinctive 'American disease' of law."

Meritocracy: Does the election of judges fit with the idea of a meritocracy?

Yes

Judicial elections are more competitive, open, and fair"In defense of elections". The Record. August 14th, 2005: "2004’s state supreme court race was the most intense and competitive judicial election Southern Illinois has ever seen. And that’s a good thing-for we the people, anyway. [...] Competitive debate isn’t the most comfortable exercise for everyone-- namely that ruling class accustomed to dominating the courthouse. This explains why the plaintiff’s bar is so dead set on ensuring an election like Karmeier vs. Maag never happens again. [...] Groups like the Washington, D.C.-based Justice at Stake Campaign (JASC)-the trial lawyer-backed group that released that new report-would have one think rigorous campaigns are a bad thing. [...] Only in the eyes of the losers and dictators are free elections, free speech and open discussion a public threat. [...] Just as our system didn’t create judicial elections to be ignored, it didn’t intend for our judiciary to exist in the shadows, nameless and unknown, immune from criticism. [...] In the case of Southern Illinois’ now notorious race, the underdog won, carrying the day with his reasoned arguments to the public in what would have typically been enemy territory. [...] Today Justice Lloyd Karmeier is undoubtedly more recognized by his electorate than any other judge in Illinois. That’s a goal and example to which our state should aspire, not reject."

Legal hierarchy surrounding appointments is not a meritocracy. The complex, lengthy, and costly process which constitutes current legal training does not make for a fully meritocratic system. elections would allow younger lawyers and other professionals to stand for election – and the public is fully capable of recognising the best candidates.

No

Merit, not money, should sway judicial elections"Electing judges-with cash". Cody Corliss. January 30,2008: "Now that a judge can be more open about his or her beliefs, money is flowing into judicial campaigns as never before. The 2006 judicial campaign season was the highest spending on record, according to Justice at Stake, a nonpartisan monitoring group. That year, business interests gave $15.3 million to judicial candidates while attorneys kicked in another $7.4 million. Third-party interest advertising accounted for another $8.5 million. One can only imagine that 2008 will be another record year.So what can we do to end the money exchange in state judicial elections? Simply put, it's time to end judicial elections on the state's highest courts." The main problem with the requirement that candidates spend large sums of money to compete in judicial election campaigns is that it limits the prospective pool of candidates to the rich, powerful, and well-connected. These things have nothing to do with judicial merit.

Political style will replace merit with election of judges Money, looks, celebrity, or unabashed populism will triumph over reasoned and balanced moderation in judicial elections. This is common in politics, and judicial campaigns and elections have proven no different. Clearly, elections will increase these considerations over considerations of merit.

Democracies have no obligation to merit. Democracies, even representative, have nothing to uphold other than letting the voters have a voice. By it's very nature a democracy would do nothing to preserve a precedence on any sort of merit or qualifications. What's even worse is the fact that voters care very little about merit, and any elections show it. There is no real correlation of experience to votes won, if one looks back at an history of elections. To allow for a meritocracy to occur with choosing judges, people who actually appreciate merit must be the deciders. Those people are no the average voters, because as Winston Churchill once said, "The best argument agaisnt democracy, is a five-minute consversation with the average voter."

Politics: Can judges function well or better in the political process?

Yes

Election of judges does not inherently require partisanship. The election of judges is not inherently related to any affiliation with political parties. Judges are capable of influencing political life without being party political.

Appointed judges are identified with the party of the appointer. While some complain elections would make the judiciary partisan in nature, this seems to forget that the appointment of judges is partisan with the appointee typically carrying the banner of the appointers party. In other words, with elections or appointments, there is no getting away from some partisanship.

Judicial elections need not be designed as partisan. It is not necessary to design judicial elections so that candidates must affiliate with political parties. Judicial elections are frequently being designed as non-partisan, in which the primary and general elections do not require that judges appear on the ballot as Democrats or Republicans, or affiliated with any other party in elections outside of the United States. Therefore, judicial elections need not be considered partisan. They can be wholly separated from partisan politics.

Authority: Do unelected judges lack the sufficient authority and legitimacy?

Yes

Unelected judges lack authority need by co-equal branch of govt. Elections offer a certain amount of legitimacy. They confer the power of the people to a government's rule by and for the people. Lacking such electoral legitimacy, the judicial branch lacks authority. This is a problem in a government that demands checks and balances from co-equal branches. Indeed, in the United States, the judicial branch is considered the weakest of the three branches of government. But, should this be the case in a government established on the precepts of co-equal branches? An elected judiciary would be a more powerful judiciary, and thus provide for stronger checks and balances and stronger governance.

No

Judiciary is weaker; should not be stronger by elections The judiciary is almost always considered an inherently weaker branch of government due to its inherent lack of "force" and "will". This is appropriate and is outlined in the American Federalist Paper #78 (1803): "The judiciary...may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments. This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two...that...the general liberty of the people can never be endangered from that quarter; I mean, so long as the judiciary remains truly distinct from both the legislative and the Executive."

Public trust: Which system better upholds public trust in the judiciary?

Pro

Electing judges has the appearance of public legitimacy. While it may be true that elections can create the appearance of conflicts of interests and corruption, is it not also true that appointments can create the appearance of corruption between the appointer and appointee, and because appointed judges are less accountable and transparent to the electorate? Elections have the appearance of public approval and legitimacy through the process of the election and the accountability that follows. Elections, therefore, probably carry the greater appearance of legitimacy in the public-eye. Therefore, judicial elections are probably better for upholding confidence in the judicial system.

Con

Election of judges has appearance of judges selling influence. Even if judges are not acting corruptly per se, the need to raise large sums of money for effective campaigns does create the impression that judges are selling their influence.

The public has less respect for politician judges. Roscoe Pound told the American Bar Association (ABA) in 1906 when he was a Nebraska law professor, "Putting courts into politics and compelling judges to become politicians, in many jurisdictions has almost destroyed the traditional respect for the Bench."[4]

Very few countries have judicial elections; reducing its legitimacy. Japan, Switzerland, and the United States are the only countries that hold judicial elections. Indeed, outside of these countries, judicial elections are widely perceived to produce inferior judiciaries. This generally undermines the perceived legitimacy of the judicial system.